Where’s my shifts? It’s not fair
The question of whether you are dismissed if you are aren’t given shifts is one that many casual workers ask. Based on recent cases heard by the Fair Work Commission, it has been made clear that not being given shifts can be considered as a dismissal. Where’s my Shifts? is important reading many employees are sitting at home going broke, stressed because they do not know what’s going on.
If a casual worker isn’t given any shifts, it could be considered a dismissal if:
- They have been working for the employer on a regular and systematic basis for a prolonged period.
- It was reasonable for the employee to expect that they would receive further shifts on an ongoing basis.
Let’s look at a recent Fair Work Commission case that will help you understand how this is applied in practice.
Kebab shop worker argues she was fired after being blocked from WhatsApp group
For many casual workers, apps like WhatsApp are commonly used to receive shifts from their employer. So if you’re blocked from your employer’s group chat, are you effectively fired? This is the question that the Fair Work Commission answered in the general protections case Fareshta Karimi v Aker Group Pty Ltd [2023].
It involved casual kebab store worker Fareshta Karimi, a high school student. She and other store workers were given their shifts via the store’s WhatsApp group chat. And in May 2022, Ms Karimi used the group chat to request a few weeks off from her regular shifts so that she could focus on schoolwork.
This was, however, the last shift she would ever work for the store. And a big reason why is because while on leave, Ms Karimi brought up a pay dispute with her manager. On the same day, her manager booted her from the store WhatsApp group. This meant that she couldn’t receive any more shifts. If she wasn’t able to receive any shifts, Ms Karimi felt that she had effectively been fired. And feeling like her workplace rights had been violated, she made a general protections claim with the Fair Work Commission.
Employee alleges store committed adverse action for firing her
The general protections provisions of the Fair Work Act 2009 entitle Australian workers to a number of rights. One of those is the right to make a complaint or inquiry with their employer to ensure they are complying with a workplace law or instrument. If the employer fires the employee or alters their employment to their detriment, this is considered an adverse action.
In her general protections claim, Ms Karimi argued to the Fair Work Commission that the store’s owner, Aker Group, had committed adverse action against her. That is, for firing her because she raised her pay dispute with the store, which she was legally entitled to do.
Both parties make arguments to the Fair Work Commission
However, Aker Group argued to the Fair Work Commission that it had not committed adverse action. Namely, because it had not fired Ms Karimi. Aker Group rejected the notion that removing her from the store WhatsApp group was tantamount to dismissing her.
Aker Group claimed that it “routinely” removed store workers from the WhatsApp group. And that it often did so when workers requested time off from receiving shifts. Ms Karimi, however, told the Fair Work Commission that the store never removed workers from the WhatsApp group unless they were fired. Ms Karimi stated that “on no other occasion” had she been deleted from the WhatsApp group. This included when she had requested time off to focus on her school work.
Fair Work Commission rules on the case
The Fair Work Commission accepted that Aker Group had never told Ms Karimi that she had been dismissed. However, it also found that removing her from the WhatsApp group was “the principal contributing factor” that ended her employment. The Fair Work Commission found that the WhatsApp group was the principal means by which the store allocated shifts to workers. And therefore by removing an employee from the group, they wouldn’t receive any more shifts.
The Fair Work Commission rejected Aker Group’s argument that it had removed Ms Karimi from the WhatsApp group because it didn’t want to disturb her studies. The Fair Work Commission noted that if this was the intention of the company, it would have removed her from the group months earlier, when Ms Karimi went on leave to focus on her studies. Ultimately, the Fair Work Commission found that Ms Karimi had been fired by Aker Group. Her general protections claim therefore proceeded to conciliation.
Are you dismissed if you’re given less shifts?
If you’re not given any shifts for a long period, the Fair Work Commission will likely consider that as tantamount to being fired. But what if you are simply given less shifts than usual? The unfair dismissal case Mr Pacifique Gakindi v Oncall Language Services Pty Ltd [2023] helps to answer that question.
The case involves Pacifique Gakindi, a casual translator who had worked for Oncall Language Services for 15 years. Oncall provides interpreting and translating services through around 4,000 translators located across Australia. All translators are employed on a casual basis, given the ebb and flow of demand for their work from clients.
Mr Gakindi had performed translation services in Kirundi and Kinyarwanda. He is also fluent in Kiswahili and French. He would receive translation work via the Oncall online portal. The work wasn’t systematic or regular. Rather, it was largely dependent on client demand.
Employee is taken off client job – was he unfairly dismissed?
From July to November 2022, Mr Gakindi performed Kirundi and Kinyarwanda translation for client Grasstree Inala services centre. This was performed according to a contract of services. It involved working Monday to Friday every week, between the hours of 8:30 a.m. and 4:30 p.m. Mr Gakindi told the Fair Work Commission that he also performed translation in Kiswahili, for which “he is not accredited.” However, he maintained that “the client knew of his level of proficiency.”
But even so, Grasstree Inala asked Oncall to end Mr Gakindi’s services, citing his “lack of proficiency in Kiswahili.” Soon, Mr Gakindi noticed that his translation jobs for Grasstree Inala had been removed from the job portal. And Oncall phoned him to say that he wouldn’t be able to perform translation for Grasstree Inala anymore. Mr Gakinda told the Fair Work Commission that “there were no warnings regarding his performance.” In December, Mr Gakinda sought to clarify his employment as he was “still confused about if he was dismissed or not.” In response, Oncall said that “he would not be returning to work for the client.”
Employee makes unfair dismissal claim with Fair Work Commission
After being removed from providing services to Grasstree Inala, Mr Gakindi continued performing translation in Kirundi and Kinyarwanda for Oncall’s other clients. However, he was being provided with far less translation work. Mr Gakindi therefore decided to make an unfair dismissal claim with the Fair Work Commission.
He alleged that he had been fired because he was asked not to provide services for Grasstree Inala. Mr Gakindi also argued that he had experienced an unfair dismissal because he was not made aware of any issues regarding his performance. And that he was not given the chance to respond to any performance issues. Due to his unfair dismissal, Mr Gakinda claimed that he had “suffered financially” due to receiving far less work from other clients.
Oncall counters unfair dismissal claim at the Fair Work Commission
In response to Mr Gakindi’s unfair dismissal claim, Oncall told the Fair Work Commission that his work volume had lessened towards the end of 2022. However, the company maintained that this drop in work volume was “the result of the ebb and flow of casual employment, rather than a dismissal.”
Oncall refuted that Mr Gakindi had experienced an unfair dismissal. The company argued to the Fair Work Commission that it had “no obligation” to keep on providing Mr Gakindi with translation work “for a temporary assignment when the client did not require his services.” The company also highlighted that Mr Gakindi had experienced a “termination of assignment,” which was different from a “termination of employment.”
Was the employee unfairly dismissed? The Fair Work Commission decides.
At Mr Gakindi’s unfair dismissal hearing, the Fair Work Commission decided that being given less shifts doesn’t equate to a dismissal. It declared that “a casual employee relies upon the demand for the services.” The Fair Work Commission took into account Oncall’s argument that there was a difference between termination of assignment and termination of employment. And it found that “a mere termination of assignment would not fall under [the scope of dismissal].”
The Fair Work Commission also stated that following the termination of assignment, Oncall and Mr Gakindi maintained correspondence. It found that “there is an ongoing relationship” between the two parties. And that there are “ongoing offerings of work from the employer.” The Fair Work Commission stated that Oncall offers work assignments based upon demand from its clients. And that its clients “have the discretion to utilise the services they request in the manner that they require.”
It was found that the translation work performed by Mr Gakindi for Grasstree Inala “was not at the level the client needed.” Therefore, Oncall was “contractually bound to provide that service through an appropriately skilled interpreter.” Ultimately, the Fair Work Commission decided that Oncall had not fired Mr Gakindi, and that he “continues to be an employee” of the company. Rather, he had simply been “removed from an assignment due to a lack of a particular language skill.” Mr Gakindi’s unfair dismissal claim was therefore dismissed by the Fair Work Commission.
How can casual workers take action through the Fair Work Commission?
As a casual worker, you can take action through the Fair Work Commission if you feel your rights have been violated. Depending on your circumstances, you can make an unfair dismissal claim or a general protections claim with the Fair Work Commission.
A causal employee has the right to make such claims if they:
- Performed work for their employer on a regular and systematic basis.
- Reasonably expected that their employment would be ongoing.
- Worked for in their position for a minimum period of 6 months (if their employer isn’t classified as a small business). Or worked for a minimum period of 12 months (if their employer is classified as a small business.)
Have you been mistreated as a casual employee?
If you have been unfairly dismissed or had your rights violated as a casual employee, talk to us. We can help you take action through the Fair Work Commission. But be sure to act fast. You must make an unfair dismissal claim or general protections claim within 21 days.
If you need help understanding what kind of claim to make with the Fair Work Commission, we can help you out. A Whole New Approach is a leading provider of workplace mediation services in Australia. The company boast over two decades of experience, having helped more than 16,000 Australian workers take action through the Fair Work Commission. We believe that everyone has the right to a fair and just workplace. AWNA are passionate about advocating for employees who have experienced unfair treatment.
We offer a free initial consultation to help you understand your rights and explore the available options. Our consultations are confidential, and there’s no obligation to proceed with our services. Our skilled mediators are here to support you and help you fight for justice.
Contact us at 1800 333 666 for a confidential discussion and take the first step towards a fair outcome.
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